National Court of Papua New Guinea

STATUTES - Repeal - Savings - “Election” or “appointment” of Vice President of Local-Level Government - “Election” and “revocation” under repealed law - “Appointment” and “revocation” under new law - Suspension pending revocation under new law - Retrospective application of new law - Whether “election” under repealed law valid - Whether suspension under new law valid - Constitution; Ss.11 & 12; Sch.1.17(1); Organic Law Provincial and Local-Level Government, Part II Div. 2-3; Local-Level Government System (Interim and Transitional Arrangements Act 1995 (repealed) Ss.26 & 28; Local-Level Government Administration Act 1997; Ss.13,67,74; Interpretation Act (Ch. No.2). Ss.36(1),63(1).

Counsel

P. Potane for Plaintiff.

No appearance for the Defendant.

23 October 1998

INJIA J: The plaintiff is seeking certain declaratory orders against the defendants in respect of his suspension as the Vice-President of Lagaip Local Government Council (“the Council”) on 18 March 1998 by the First Defendant who is the President of the Council. His principal claim appears to be a declaration that his suspension is null and void. Another declaratory order sought is that the power to suspend or remove a Vice- President is vested in the “Council” by s. 28 of the Local Government Act (Ch. No. 57), and not in the President under s. 13 of the Local-Level Government Administration Act 1997.

The development of statutory law on the subject of Local-Level Government requires some clarification. The Organic Law on Provincial and Local-Level Governments (the “Organic Law”) came into force on 12 February 1996. This Organic Law repealed the old Organic Law on Provincial Governments and established a new system of Provincial and Local-Level Governments. Part II Division 2-3 of this new Organic Law deals with Local-Level Governments (which comprise of Local Government Councils.). Section 26(1) of this Organic Law provides that subject to the Constitution and this Organic Law, “an Act of the Parliament shall make provision for a system of Local-Level Governments for rural and urban communities”. Whilst s.29 of the Organic Law provides for the office and position of the elected head of the Local-Level Government otherwise known as the President, there is provision for the position of the Deputy-Head otherwise known as Vice-President.

Also on 12 February 1996, the Local-Level Government system (Interim and Transitional Arrangements) Act 1995 came into force. This Act adopted the existing Local Government Act (Ch. No. 57) as the Act to regulate the administration of Local-Level Governments in the interim pending the enactment of permanent legislation affecting Local-Level Governments. Section 26 of the Local Government Act, provided for the office of the President of each Council. Section 28 of that Act provided for the office of the Deputy Vice-President of each Local Government Council. Under s.28(2), the Vice President was to be “elected” by the Council and removed from office in the same manner. Section 28 provided:

“28. Vice-prets

(1)&#160 &#160re seall be such numbenumber of Vice-presidents of each Council as is determined by the Council.

(2) ҈ The Vice Vice-presidents:

(a) ـ lefrom time tome tome to time time, as , as determined by the Council, by vote of the Councillors from amongst their own number; and

(b) &ـ&#1ay be removed ffom office in the same manner.

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(3)&#13) &ـ Where tere there aere are more Vice-presidents than they rank in such order of seniority as the Council determines.

(4)  If for anyon tse dent able able to act, or t or the ofhe office of President is vacant, the Vice-president (or if there are more Vice-presidents than one the seVice-dent)lable all owers, functions, dns, dutiesuties and and resporesponsibinsibilities of the President.”

On 26 November 1997, Parliament passed the Local-Level Governments Administration Act 1997. This Act repealed the Local Government Act (Ch No. 59) and the Local-Level Government System (Interim and Transitional Arrangements) Act 1995 and other related legislations: see s.66 of this Act This Act set out a permanent system of administration for Local-Level Governments to replace the old Local Government Council System. This Act was certified on 22 January 1998. The preamble of this Act provided for the date of the coming into operation of this Act retrospective to “on the day following the day fixed for the return of writs for the 1999 general elections to Local-Level Governments”. According to Mr. Cleophas Roa, the District Administrator of Laiagam, the return date of the Writs for the Lagaip Local-Level Government was 15 October 1997: see Mr. Roa’s letter to the National Court dated 7 May 1998. In the absence of any proper evidence before me as to the date of the return of the writs for Local-Level Governments, I accept his statement because it is an official statement.

The Plaintiff says in his affidavit that on or about 26 October 1997, he was elected the Vice President of the Lagaip Local Government Council by absolute majority. That is just over a week after the return of the Writ. The First Respondent in his affidavit confirms this when he says the plaintiff was “duly elected Vice President upon the formation of the Government after return of Writs by absolute majority of Councillors.”

From the above, I think there is no confusion as to the prevailing law at the time the Plaintiff was elected Vice-President. He was elected when the new Local-Level Government Administration Act 1997 was in force as at 15 October 1997, and not when the Local Government Act (Chapter No. 57) and the Local-Level Government System (Interim and Transitional Arrangements) Act 1995, were in force, both of which stood repealed as at 15 October 1997 by virtue of the combined operation of the preamble and s.66 of the Local-level Governments Administration Act 1997.

However, s.13 of the Local-Level Governments Administration Act 1997, provided for the Deputy-Head to be “appointed” by the Head of the Local-Level Government and his appointment revoked by, inter alia, the Head of the Local-Level Government. Section 13 provides:

“13. &#16PUTY OF A LO A LOCAL-LEAL-LEVEL GOVERNMENT

(1) ҈ serel ball be an o an office of deputy head of the Local-level Government.

(2) &##160;depe y hety head of d of a Local-level Gover shalappoiby the head of the Local-level Governmeernment.

(3) ټ&#A membemember appo appointed under Section 2c) orof thanic Laic Law is w is eligieligible to be appointed deputy head of the Local-level Government.

(4) &#16deputd of a Local-leve-level Govl Government vacates office where:

(a) ـ&#1e ceas ceases to s to be a member; or(b)&ـ҈ he is dismissed from office under Section 10; or

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(c)&#(c) &160; #160; .” (my underlining.)

At the outset, it is to be noted that although is nress to sd the-President given toen to the the PresiPresident dent by thby the Act, the power to suspend is implied in the power to revoke an appointment: see Interpretation Act (Ch. No. 2), s.36(1).

It is obvious from the above that there is a variation in the method of selection of the plaintiff as Vice-President or Deputy-Head by “election” of the Council and his suspension by the First Respondent by executive action. This variation occurred in the period between the day fixed for return of the Writs, that is 15 October 1997, and the date of certification of the Local-Level Government Administration Act 1997; that is 22 January 1998, the election of the plaintiff having occurred within this period, that is on 26 October 1997. Whereas the “election” of the Vice-President is a variation from the procedure set out in s.13(2) of the Act, the suspension is consistent with s.13(4)(c) of the Act. The question is whether his “election” by the Council was valid.

The validity of decisions of a Local-Level Government made in this period is governed by s.74 of this Act. Section 74(1) provides:

“74. VALIDATION

( ) &##160; Al0; All acts acts, carritd out by a Local-level Government in the performance of its functions, duties and responsibilities and in the exercise of its powers d the d fro day after the day fixy fixed foed for the return of the writs for the 199e 1997 general elections to Local-level Governments until the date of certification of this Act, substantially in compliance with the provisions of this Act, are deemed to have been carried out in compliance with this Act and are, to the extent of any minor variation from the provisions of this Act, hereby validated.”

The plaintiff was elected Vice-President of the Council on 26 October 1997. His “election” by the Council as opposed to his appointment by the President, in my view, is a minor variation from the provisions of this Act. To that extent, it is validated by s.74(1) of the Act. I say it is a minor variation because (1) The Head of the Council, the First Respondent, was a party to the election process of the Plaintiff. His participation in the election and subsequent acceptance of the plaintiff as his Vice-President is tantamount to his appointing the Plaintiff as his Vice-President as required by s.13(1) of the Act and therefore an act done in substantial compliance with s.13(2) of the Act. (2) The President alone is empowered to appoint his Vice-President and has power to revoke the appointment of his Vice-President under s.13(4)(c). And he correctly exercised his power under s.13(4)(c) when he suspended the plaintiff pending his revocation.

Counsel for the plaintiff relies on Sch. 1.17(1) of the Constitution and submits the plaintiff acquired his position by “election” under the repealed Local Government Act and he is entitled to enjoy the privilege of the position until his position is revoked by “election” of the Council under this repealed Act. The plaintiff’s Counsel appeared to realize the absence of any saving provision in the Local-Level Government Administrative Act 1996 in respect of positions derived under the repealed Act and in turn resorted to Constitution, Sch. 1.17(1). In my view, this submission is misconceived in law for two reasons. First, Constitution, Sch 1.17(1) only applies to “a Constitutional law or a part of a Constitutional law” of which the repealed Local Governments Act (Ch. No. 52) and the new Local-Level Governments Administration Act 1997 are not. They are ordinary statutes and Constitution Sch. 1.17(1) has no application.

The interpretation of ordinary statutes is governed by the Interpretation Act: see s.63(1). Assuming the (repealed) Local Government Act (Ch. No. 52) (which was not) was applicable when the plaintiff was “elected”, s.63(1) of the Interpretation Act applied to save his position.

Secondly, the effect of the repeal of the statutes referred to above was that the repealing Act extinguished the method of selecting and removing the Deputy-Head by “election” of the Council as at 15 October 1997 or 22 January 1998 (the date of certification of the new Act) and in lieu thereof, vested the power to appoint the Vice-President exclusively with the President and removal of the Vice-President with the President and others. The President’s suspension of the plaintiff’s appointment pending revocation after 15 October 1997 or 22 January 1998 could only be done under s.13(4)(c) of the new Act, which he properly did on 18 March 1998.

For all these reasons, I come to the conclusion that the plaintiff was lawfully suspended pending his revocation by the President of the Council under his powers conferred by s.13(4)( c) of the new Act, and for a good reason. I dismiss the plaintiff’s application. Each party shall bear their own costs.

Lawyer for the Plaintiff: PATO POTANE

Lawyer for the Defendant: ALBERT KIPLEN